What Message Are We Sending to Criminal Jurors When We Ask Them to 'Send a Message' With Their Verdict?

112 Pages Posted: 21 May 2012 Last revised: 14 Jun 2012

See all articles by James J. Duane

James J. Duane

Regent University - School of Law

Date Written: Spring 1995


During closing arguments in criminal trials, prosecutors routinely implore the jurors to convict the accused as a method of "sending a message" to the community and especially to would-be criminals that the community will not "tolerate" the sort of criminal conduct with which the defendant has been charged. The absurdity of such pleas ought to be self-evident, because a not guilty verdict does not in way signify or imply that the jury has decided to tolerate or surrender to drug dealers or child pornographers or terrorists or anyone else who has committed the kinds of offenses that were allegedly involved in the case on trial.

Nevertheless, even though most state courts have correctly condemned such arguments as obviously improper, and even though such prosecutorial comments are always roundly condemned by federal trial judges, they have been almost unanimously approved by the United States Courts of Appeals, typically on the basis of the assumption that it is proper for a prosecutor to invite a jury to convict as a means of exercising its prerogative to act as the "conscience of the community." As a result, federal prosecutors throughout the nation continue to use this highly prejudicial and misleading form of closing argument.

This article offers a detailed explanation as to why such closing comments are improper, unethical, unconstitutional, and involve a serious distortion of the the criminal justice system and the jury's role in that system in particular. It explains why this problem poses a direct and pervasive threat to the integrity of the American criminal justice system, and also examines the way in which this problem is greatly compounded by the increasing tendency of political leaders, public figures, media outlets, and even jurors themselves to speak openly about the supposed "message" that is sent when a jury votes to convict any man charged with a horrible offense.

Suggested Citation

Duane, James, What Message Are We Sending to Criminal Jurors When We Ask Them to 'Send a Message' With Their Verdict? (Spring 1995). American Journal of Criminal Law, Vol. 22, No. 565, 1995, Available at SSRN: https://ssrn.com/abstract=2063724

James Duane (Contact Author)

Regent University - School of Law ( email )

1000 Regent University Drive
Virginia Beach, VA 23464
United States

HOME PAGE: http://www.regent.edu/duane

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